6. FRAUD AND FALSE SWEARING IN PROOFS OF LOSS. (a) Nature and effect of condition in general. (b) Persons affected by fraud or false swearing of insured. (c) Materiality of false statement. (d) Fraudulent intent-Statements made through ignorance or negli gence of insured. (e) Same-Possibility of injury to insurer. (f) Same "Fraud” as an element of “false swearing." (g) Statements as to cause and circumstances of loss. (h) Statements regarding property not covered by policy or not destroyed. (i) Statements as to value of property destroyed. (J) Statements as to title and interest-Incumbrances. (k) Miscellaneous instances of fraud or false swearing. (1) Forfeiture of entire policy. (m) Questions of practice. (a) Nature and effect of condition in general. Modern fire policies all contain a provision looking to the forfeiture of all claims under the policy, in case of fraud by the insured, whether such fraud occur before or after the destruction of the property. In the standard policies of Connecticut, Louisiana, Michigan, Missouri, New Jersey, New York, North Carolina, North Dakota, Rhode Island, South Dakota, and Wisconsin, this provision reads: "This entire policy shall be void * * * in case of any fraud or false swearing by the insured, touching any matter relating to this insurance or the subject thereof, whether before or after a loss." Practically the same result is reached by the standard policies of Maine, Massachusetts, Minnesota, and New Hampshire, which provide: "This policy shall be void * ** if the insured shall make any attempt to defraud the company, either before or after the loss." Under such a provision the ordinary rule that fraud occurring after the fixing of liability will not affect the rights of the parties does not apply, and the policy may therefore be avoided for fraud or false swearing occurring in the proofs of loss. Ferriss v. North American Fire Ins. Co., 1 Hill (N. Y.) 71; Phoenix Ins. Co. v. Munday, 5 Cold. (Tenn.) 547; Gies v. Bechtner, 12 Minn. 279 (Gil. 183). Nor can it be successfully argued that there is any difference between a provision avoiding the policy for fraud, and one forfeiting all claims thereunder, and that the former provision would not reach a claim matured at the time of the fraud. Such a distinction would be entirely inconsistent with the plain meaning of the contract. (F. Dohmen Co. v. Niagara Fire Ins. Co., 96 Wis. 38, 71 N. W. 69.) In connection with these cases, attention might also be called to Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31, where it said that, in the absence of such a clause, an overestimate in making the proof would not forfeit the policy. Though the operation of such a clause as to fraud is not affected. by the fixing of the liability by loss, it will not operate to forfeit the claim of the insured on account of false statements made after the commencement of action on the policy. In such a case the rights of the parties must be determined by their status at the commencement of the action (Deitz v. Providence Washington Ins. Co., 33 W. Va. 526, 11 S. E. 50, 25 Am. St. Rep. 908.) (b) Persons affected by fraud or false swearing of insured. The interests of persons who have jointly taken out a policy of insurance are not severed by the occurrence of a loss; and any subsequent failure upon the part of one of them to comply with the conditions imposed by the policy, as to notice or proof of loss, will defeat any action that may be brought upon it (Monaghan v. Agricultural Fire Ins. Co., 53 Mich. 238, 18 S. W. 797). But in Henderson v. Western Marine & Fire Ins. Co., 10 Rob. (La.) 165, 43 Am. Dec. 176, it appeared that two policies had been taken out by the same person, one in his own right, and the other as agent, and that in making proofs under his own policy he was guilty of false swearing. The court held that such fraud was clearly irrelevant in an action on the other policy. Not only did the fraud occur under another policy, but as to such fraudulent statements, made in his own behalf, no agency existed. And in Metzger v. Manchester Fire Assur. Co., 102 Mich. 334, 63 N. W. 650, it was held (Grant, J., dissenting) that a provision avoiding a policy in case of any fraud or false swearing by the assured or his "legal representative" did not include the assured's agent, but only his executor, administrator, or assignee, and that, therefore, false statements made by the insured's husband, who had complete charge of the business, were not effective to forfeit the policy. False swearing by the insured will, however, defeat recovery by a payee of the policy or an assignee of the claim for loss, as such claimants are in no better position than the insured. Merchants' Nat. Bank v. Insurance Co. of North America, 4 Ohio Dec. 340, 1 Cleve. Law Rep. 339; Pupke v. Resolute Fire Ins. Co., 17 Wis. 378, 84 Am. Dec. 754. (c) Materiality of false statement. A misrepresentation by the insured of matters not relevant to the insurance will not forfeit the policy under the clause dealing with fraud and false swearing. The following cases support such doctrine: Feibelman v. Manchester And false statements contained in the proofs as to matters not required to be set forth therein will not forfeit the policy. Runkle v. Hartford Ins. Co., 99 Iowa, 414, 68 N. W. 712; Chamberlain v. Insurance Co. of North America, 3 N. Y. Supp. 701, 51 Hun, 636. And in Daul v. Firemen's Ins. Co., 35 La. Ann. 98, and Chamberlain v. Insurance Co. of North America, 51 Hun, 636, 3 N. Y. Supp. 701, it seems to be implied that, since proofs furnished after a waiver thereof by the company were a superfluity, any false statement therein contained would not be effective to vitiate the policy. The Daul Case, however, went off rather on the theory that there was no fraudulent intent in the misstatement, and the Chamberlain Case on the theory that the error, in any event, was immaterial, since the proofs specified by the policy did not include any statement as to incumbrances. Apparently governed by the same principle in relation to immaterial statements are the cases holding that, where the amount of recovery is by statute made dependent on the amount of insurance rather than the value of the property, misrepresentations in relation to such value will not forfeit the insurance. This is asserted in Oshkosh Packing & Provision Co. v. Mercantile Ins. Co. (C. C.) 31 Fed. 200; Barnard v. People's Fire Ins. Co., 66 N. H. 401, 29 Atl. 1033; Sullivan v. Hartford Fire Ins. Co., 89 Tex. 665, 36 S. W. 73; German Ins. Co. v. Jansen, 18 Tex. Civ. App. 190, 45 S. W. 220; Cayon v. Dwelling House Ins. Co., 68 Wis. 510, 32 N. W. 540. It is, however, pointed out in Walker v. Phoenix Ins. Co., 62 Mo. App. 209, that where, by the statute, the insurer has the option of paying the full amount of insurance, or restoring the building, the value of the building may become important and material, so that a false statement in relation thereto would forfeit the policy. It has been held that a claim will not be forfeited by an exaggeration of the loss so small as to be immaterial. Clark v. Phoenix Ins. Co., 36 Cal. 168; Hamberg v. St. Paul Fire & In Hansen v. American Ins. Co., 57 Iowa, 741, 11 N. W. 670, it was said that knowledge by an agent of the insurer of the purpose for which a certain building was used did not excuse the insured in knowingly making false statements in reference thereto. But a statement that the goods were destroyed by fire, when in fact the destruction was caused by smoke and water, has been held not to amount to fraud, particularly where the company had already informed itself as to all the circumstances of the fire (Kahn v. Traders' Ins. Co., 4 Wyo. 419, 34 Pac. 1059, 62 Am. St. Rep. 47). (d) Fraudulent intent-Statements made through ignorance or negligence of insured. It is a general rule that a misstatement in the proofs of loss, to forfeit the policy, must be not only false, but willfully false. A mere innocent mistake will not amount to fraud or false swearing within the provisions of the policy. Reference to the following cases is deemed sufficient: Republic Fire Ins. Co. v. Weide, 81 U. S. 375, 20 L. Ed. 894; Betts v. Franklin Fire Ins. Co., 3 Fed. Cas. 318; Tubb v. Liverpool & L. & G. Ins. Co., 106 Ala. 651, 17 South. 615; American Cent. Ins. Co. v. Ware, 65 Ark. 336, 46 S. W. 129; Clark v. Phoenix Ins. Co., 36 Cal. 168; West Coast Lumber Co. v. State Inv. & Ins. Co., 98 Cal. 502, 33 Pac. 258; Watertown Fire Ins. Co. v. Grehan, 74 Ga. 642; Erman v. Sun Mut. Ins. Co., 35 La. Ann. 1095; Baillie & Co. v. Western Assur. Co., 49 La. Ann. 658, 21 South. 736; Commercial Ins. Co. v. Huckberger, 52 Ill. 464; Franklin Ins. Co. v. Culver, 6 Ind. 137; Runkle v. Hartford Ins. Co., 99 Iowa, 414, 68 N. W. 712; Petty v. Mutual Fire Ins. Co., 111 Iowa, 358, 82 N. W. 767; Hanscom v. Home Ins. Co., 90 Me. 333, 38 Atl. 324; Atherton v. British America Assur. Co., 91 Me. 289, 39 Atl. 1006; Planters' Mut. Ins. Co. v. Deford, 38 Md. 382; Little v. Phoenix Ins. Co., 123 Mass. 380, 25 Am. Rep. 96; Walsh v. Philadelphia Fire Ass'n, 127 Mass. 383; Johnston v. Farmers' Fire Ins. Co.. 106 Mich. 96, 64 N. W. 5; Phoenix Ins. Co. v. Summerfield, 70 Miss. 827, 13 South. 253; Marion v. Great Republic Ins. Co., 35 Mo. 148; Star Union Lumber Co. v. Finney, 35 Neb. 214, 52 N. W. 1113; Gerhauser v. North British Mercantile Ins. Co., 7 Nev. 174; Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291, 40 Am. St. Rep. 625; Jones v. Merchants' Fire Ins. Co., 36 N. J. Law, 29, 13 Am. Rep. 405; Carson v. Jersey City Ins. Co., 43 N. J. Law, 300, 39 Am. Rep. 584; Rohrbach v. Etna Ins. Co., 62 N. Y. 613; Titus v. Glens Falls Ins. Co., 81 N. Y. 410, 8 Abb. N. C. 315; Mortimer v. New York Fire Ins. Co., 2 U. S. Month. Law Mag. 452; Boyd v. Royal Ins. Co., 111 N. C. 372, 16 S. E. 389; Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Thierolf v. Universal Fire Ins. Co., 110 Pa. 37, 20 Atl. 412; Phoenix Ins. Co. v. Munday, 5 Cold. (Tenn.) 547; Lion Fire Ins. Co. v. Starr, 71 Tex. 733, 12 S. W. 45; Insurance Co. of North America v. Wicker, 93 Tex. 390, 55 S. W. 740; Mosley v. Vermont Mut. Fire Ins. Co., 55 Vt. 142; Medley v. German Alliance Ins. Co. (W. Va. 1904) 47 S. E. 101; Dogge v. Northwestern Nat. Ins. Co., 49 Wis. 501, 5 N. W. 889; Beyer v. St. Paul Fire & Marine Ins. Co., 112 Wis. 138, 88 N. W. 57. The authorities are not harmonious as to whether a false statement by the insured, not known by him to be false, but recklessly made, and without any reasonable ground for a belief in its truth, will come within the prohibition of the policy. In some cases it is said that such a false statement will amount to a fraud. Howell v. Hartford Fire Ins. Co., 12 Fed. Cas. 700; Atherton v. British America Assur. Co., 91 Me. 289, 39 Atl. 1006; Marion v. Great Republican Ins. Co., 35 Mo. 148; Leach v. Republic Fire Ins. Co., 58 N. H. 245. Other cases broadly assert that the statement must be knowingly false, and that mere negligence will not forfeit the policy. Merchants' Nat. Bank v. Insurance Co. of North America, 4 Ohio Dec. 340, 1 Cleve. Law Rep. 339; Beyer v. St. Paul Fire & Marine Ins. Co., 112 Wis. 188, 88 N. W. 57. In line with the last-mentioned authorities it has been held that a failure to exercise due diligence in ascertaining the legal effect of a purchase-money debt did not necessarily render fraudulent a false statement as to incumbrances (Phoenix Ins. Co. v. Swann [Tex. Civ. App.] 41 S. W. 519). So, also, in Knop v. National Fire Ins. Co., 107 Mich. 323, 65 N. W. 228, the majority of the court approved the refusal of peremptory instruction for defendant based on a false statement that a certain machine had been destroyed, and that castings therefrom had been found in the fire, the only explanation given by insured having been that at the time he |